Ricky Neal Jr. v. State

ACCEPTED
12-14-00158-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/11/2015 5:17:19 PM
Pam Estes
CLERK

CAUSE NO. 12-14-00158-CR

IN THE RECEIVED IN
12th COURT OF APPEALS
TYLER, TEXAS
THE 12th DISTRICT COURT OF APPEALS 9/11/2015 5:17:19 PM
PAM ESTES
Clerk
FOR THE

STATE OF TEXAS
9/11/2015

RICKY NEAL, JR.

APPELLANT
V.

THE STATE OF TEXAS,

APPELLEE

STATE’S REPLY TO APPELLANT’S BRIEF

D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas

MICHAEL J. WEST
Assistant Crimina1 District Attorney
Bar I.D. No. 21203300
Smith County Courthouse
100 N. Broadway
Tyler, Texas 75702
ph: (903) 590-1720
fax: (903) 590-1719

ORAL ARGUMENT NOT REQUESTED
 TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

COUNTERPOINT ONE: The evidence at trial was legally sufficient
to establish all the elements of the offense alleged . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

COUNTERPOINT TWO: The trial court properly excluded character
evidence that the victim may have allegedly been a gang member . . . . 28

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

COUNTERPOINT THREE: The contentions raised in Appellant's third
point of error should be overruled as multifarious. Alternatively,
the trial court did not err in the exclusion of evidence concerning
the victim's alleged membership in a criminal street gang . . . . . . . . . . 33

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

COUNTERPOINT F OUR: The trial court properly charged the jury on
the law of self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

COUNTERPOINT F IVE: Where the trial court properly charged the
jury on the law of self-defense, a charge on necessity was not
applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

ii
COUNTERPOINT SIX: The trial court properly excluded the hearsay
testimony of Mr. Wilmon Davis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

COUNTERPOINT SEVEN: The law does not support that Appellant's
trial counsel was ineffective, or that Appellant was harmed as a
result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

COUNTERPOINT EIGHT: The Trial Court did not err in denying
Appellant's requested lesser include offense charges where they
were not supported by the evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

COUNTERPOINT NINE: The Trial Court did not err in denying
Appellant's requested instruction on sudden passion where it was
not supported by the evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

iii
 INDEX OF AUTHORITIES
STATUTE/RULES P AGE

TEX. P ENAL CODE ANN. (Vernon 2013)

§ 1.07 (a) (42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27
§ 6.03 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
§ 9.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
§ 9.31 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§ 9.31(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 40
§ 9.32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 19.02 (b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§ 19.02 (b) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§ 19.02 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
§ 19.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
§ 22.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
§ 46.02 (a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

TEX. CODE CRIM. P ROC. ANN. (Vernon 2014)

Art. 37.09 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

TEX. R. APP. P ROC. (Vernon 2015)

Rule 38.1 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TEX. R. EVID.

Rule 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Rule 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Rule 803 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Rule 803 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

F EDERAL CASES P AGE

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

iv
F EDERAL CASES (CONT.) P AGE

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

STATE CASES P AGE

Alaniz v. State, 937 S.W.2d 593
(Tex.App. - San Antonio 1996, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Almanza v. State, 686 S.W.2d 157
(Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Alonzo v. State, 353 S.W.3d 778
(Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Anderson v. State, 701 S.W.2d 868
(Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Benavides v. State, 992 S.W.2d 511
(Tex.App. - Houston [1st Dist.] 1999, pet. ref'd) . . . . . . . . . . . . . . . . . . . . 58

Bumguardner v. State, 963 S.W.2d 171
(Tex. App. - Waco 1998, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Butler v. State, 663 S.W.2d 492
(Tex.App. - Dallas 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Cain v. State, 958 S.W.2d 404
(Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Carrillo v. State, 98 S.W.3d 789
(Tex.App. - Amarillo 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Cavazos v. State, 382 S.W.3d 377
(Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

v
STATE CASES (CONT.) P AGE

Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Daniels v. State, 645 S.W.2d 459
(Tex.Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Davis v. State, 840 S.W.2d 480
(Tex.App. – Tyler 1992, pet. ref'd) . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 27

Dewberry v. State, 4 S.W.3d 735
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Edmond v. State, 116 S.W.3d 110
(Tex.App. - Houston [14th Dist.] 2002, pet. ref'd) . . . . . . . . . . . . . . . . . . 51

Ex parte Miller, 330 S.W.3d 610
(Tex.Crim.App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ex parte Zepeda, 819 S.W.2d 874
(Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Fink v. State, 97 S.W.3d 739
(Tex.App. - Austin 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Ferguson v. State, 97 S.W.3d 293
(Tex.App. - Houston [14th Dist.] 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . 47

Gonzales v. State, 717 S.W.2d 355
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Hall v. State, 225 S.W.3d 524
(Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Hernandez v. State, 726 S.W.2d 53
(Tex.Crim.App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

vi
STATE CASES (CONT.) P AGE

Hernandez v. State, 127 S.W.3d 206
(Tex.App. - Houston [1st Dist.] 2003, pet. ref'd) . . . . . . . . . . . . . . . . . . . . 58

Hooper v. State, 214 S.W.3d 9
(Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hunter v. State, No. 14-08-00202-CR, 2008 Tex.App. LEXIS 9139
(Tex.App. - Houston [14th Dist.] Dec. 9, 2008, no pet.)
(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Jenkins v. State, 740 S.W.2d 435
(Tex. Crim.App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kemp v. State, 892 S.W.2d 112
(Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . 50

Laster v. State, 275 S.W.3d 512
(Tex.Crim.App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Lee v. State, 259 S.W.3d 785
(Tex. App. - Houston [1st Dist.] 2007, pet. ref'd) . . . . . . . . . . . . . . . . . . . 38

Lucio v. State, 351 S.W.3d 878
(Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lugo v. State, 667 S.W.2d 144
(Tex.Crim.App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Martinez v. State, 91 S.W.3d 331
(Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 33

Martinez v. State, 16 S.W.3d 845
(Tex.App. - Houston [1st Dist.] 2000, pet. ref'd) . . . . . . . . . . . . . . . . . . . 54, 55

vii
STATE CASES (CONT.) P AGE

McFarland v. State, 845 S.W.2d 824
(Tex. Crim.App.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

McKinney v. State, 179 S.W.3d 565
(Tex.Crim.App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Michael v. State, 864 S.W.2d 104
(Tex.App. - Dallas 1993, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Miller v. State, 177 S.W.3d 177
(Tex.App. - Houston [1st Dist.] 2005, pet. ref'd) . . . . . . . . . . . . . . . . . . . . 54, 55

Moncivais v. State, 425 S.W.3d 403
(Tex.App.-Houston [1st Dist.] 2011, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . 58

Montgomery v. State, 810 S.W.2d 372
(Tex.Crim.App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Moore v. State, 392 S.W.3d 697
(Tex. App. Dallas 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Murphy v. State, 864 S.W.2d 70
(Tex.App. - Tyler 1992, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Ortiz v. State, 144 S.W.3d 225
(Tex.App. - Houston [14th Dist.] 2004, pet. ref'd) . . . . . . . . . . . . . . . . . . . 56

Rios v. State, 990 S.W.2d 382
(Tex.App. - Amarillo 1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Saxton v. State, 804 S.W.2d 910
(Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

viii
STATE CASES (CONT.) P AGE

Sandoval v. State, No. 12-12-00366-CR, 2013 Tex.App. LEXIS 9497
(Tex.App. - Tyler July 31, 2013, pet. ref'd)
(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Searcy v. State, 231 S.W.3d 539
(Tex.App. - Texarkana 2007, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Sterling v. State, 800 S.W.2d 513
(Tex.Crim.App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Sweed v. State, 351 S.W.3d 63
(Tex.Crim.App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Thompson v. State, 9 S.W.3d 808
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Torres v. State, 71 S.W.3d 758
(Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Whipple v. State, 281 S.W.3d 482
(Tex.App. – El Paso 2008, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wilson v. State, No. 06-14-00021-CR, 2014 Tex.App. LEXIS 12188
(Tex.App. - Texarkana Nov. 7, 2014, pet. ref'd)
(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Wood v. State, 18 S.W.3d 642
(Tex.Crim.App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Zuliani v. State, 97 S.W.3d 589
(Tex.Crim.App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 46

ix
 CAUSE NO. 12-14-00158-CR

IN THE

THE 12th DISTRICT COURT OF APPEALS

FOR THE

STATE OF TEXAS

RICKY NEAL, JR.,

APPELLANT
V.

THE STATE OF TEXAS,

APPELLEE

STATE’S REPLY TO APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, and respectfully urges this Court to overrule Appellant’s

alleged errors and affirm the judgment of the trial court in the above-numbered cause.

STATEMENT OF THE CASE

Appellant, Ricky Neal, Jr., was indicted in Cause No. 007-0505-13, filed in the

7th District Court of Smith County, Texas, with the offense of Murder. (CR: 1). From

1
April 29, 2014, through May 7, 2014, the case was tried to a jury and Appellant

convicted of the offense alleged by the indictment. (RR 18: 11). The same jury, after

hearing evidence and argument of counsel, assessed a sentence of Life confinement

in the Texas Department of Criminal Justice - Institutional Division and no fine.

(Supp RR 1: 34).

Appellant gave timely notice of appeal, counsel was appointed, and a brief filed

with the Court. The State's brief will be timely filed if the Courtgrants the attached

motion for extension.

STATEMENT OF F ACTS

Appellant has accurately stated the essential nature of the evidence presented

at his trial. In the interest of judicial economy any other facts not mentioned herein

that may be relevant to disposition of Appellant’s points of error will be discussed in

the State’s argument in response to those points.

REPLY TO APPELLANT’S P OINTS OF ERROR AND SUMMARY OF ARGUMENT

COUNTERPOINT ONE: The evidence at trial was legally sufficient to establish all
the elements of the offense alleged.

A. Summary of Argument

Appellant complains under his first point of error that the State’s evidence was

insufficient to support the jury's verdict where it failed to rebut his claim of self

2
defense. (Appellant’s brief at 6-12). However, The State presented testimony from

which the jury could have found beyond a reasonable doubt that Appellant

intentionally and knowing caused the death of the victim in this case as alleged in the

indictment.

B. Standard of Review

Articulating the standard of review for legal sufficiency in Jackson v. Virginia,

443 U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt." "[T]his same standard applies equally to circumstantial and direct

evidence." Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). When

examining the evidence for legal sufficiency, a reviewing court's role is not to become

a "thirteenth juror", and it may not "re-evaluate the weight and credibility of the

record evidence" and thereby substitute its judgment for that of the jury. Dewberry

v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).

Thus, "[t]he reviewing court must give deference to the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d

9, 13 (Tex.Crim.App. 2007) citing Jackson, 443 U.S. at 318-19. In cases involving

3
a claim of self-defense, the defendant has the initial burden of producing evidence

to raise self-defense; the State then has the final burden of persuasion to disprove it.

Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The State is not

obligated to offer evidence refuting a claim of self-defense; rather, the State is

required to prove its case beyond a reasonable doubt. Id. When a fact finder

determines that the defendant is guilty, there is an implicit finding against the

defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003) citing

Saxton, 804 S.W.2d at 914).

When an appellant challenges the legal sufficiency of the evidence supporting

a jury's rejection of self-defense, the Court should not look "to whether the State

presented evidence which refuted the appellant's self-defense testimony, but rather

determine whether after viewing all the evidence in the light most favorable to the

prosecution, any rational trier of fact would have found the essential elements" of

murder "beyond a reasonable doubt and also would have found against the appellant

on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914.

C. Application to the Facts of the Case

Under his first point of error, Appellant complains that the evidence at trial was

insufficient to support the jury's verdict of guilt over evidence he claims established

that he acted in self-defense. (Appellant’s brief at 6-12). The indictment here alleged

4
in its relevant part that Appellant "did then and there intentionally or knowingly cause

the death of an individual, namely Christopher Mass, by shooting Christopher Mass

with a firearm . . ." (CR:1); TEX. PENAL C ODE ANN. § 19.02 (b) (1) (Vernon 2013).

The indictment contained a second paragraph alleging that Appellant "did then and

there, with the intent to cause serious bodily injury to an individual, namely

Christopher Mass, commit an act clearly dangerous to human life that caused the

death of said Christopher Mass, by shooting Christopher Mass with a firearm . . ."

(CR:1); TEX. PENAL CODE ANN. § 19.02 (b) (2) (Vernon 2013). Appellant argues that

the jury erred in rejecting his self-defense claim and convicting him of murder.

As charged in the indictment, the State had to show that Appellant did

intentionally or knowingly cause the death of Christopher Mass. (CR: 1). As the

Court of Criminal Appeals explained in Saxton:

[T]he State has the burden of persuasion in disproving the
evidence of self-defense. That is not a burden of production, i.e., one
which requires the State to affirmatively produce evidence refuting the
self-defense claim, but rather a burden requiring the State to prove its
case beyond a reasonable doubt. Secondly, and more importantly, case
law instructs us that the issue of self-defense is an issue of fact to be
determined by the jury.
Saxton, 804 S.W.2d at 913 (citation omitted).

“A jury verdict of guilty is an implicit finding rejecting the defendant's

self-defense theory." Id. at 914 citing Jenkins v. State, 740 S.W.2d 435, 438 (Tex.

5
Crim.App. 1983). Section 9.31 of the Texas Penal Code provides in pertinent part:

Except as provided in Subsection (b), a person is justified in using force
against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the other's use
or attempted use of unlawful force. The actor's belief that the force was
immediately necessary as described by this subsection is presumed to be
reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force
was used:

(A) unlawfully and with force entered, or was attempting to enter
unlawfully and with force, the actor's occupied habitation, vehicle, or
place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove
unlawfully and with force, the actor from the actor's habitation, vehicle,
or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery, or aggravated
robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic
at the time the force was used.

TEX. PENAL CODE ANN. § 9.31 (a) (Vernon 2013).

Penal Code Section 9.32 in part allows for the use of deadly force in self-

defense in the following limited circumstances:

(a) A person is justified in using deadly force against another:

6
(1) if the actor would be justified in using force against the other under
Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force
is immediately necessary:

(A) to protect the actor against the other's use or attempted use of
unlawful deadly force; or

(B) [omitted]

(b) The actor's belief under Subsection (a)(2) that the deadly force was
immediately necessary as described by that subdivision is presumed to
be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the
deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter
unlawfully and with force, the actor's occupied habitation, vehicle, or
place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove
unlawfully and with force, the actor from the actor's habitation, vehicle,
or place of business or employment; or

(C) was committing or attempting to commit an offense described by
Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic
at the time the force was used.

TEX. PENAL CODE ANN. § 9.32 (a), (b) (Vernon 2013).

7
 “‘Reasonable belief’ means a belief that would be held by an ordinary and

prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07

(a) (42) (Vernon 2013).

Appellant argues that the evidence showed his use of deadly force was

immediately necessary after he was "confronted" by the victim and another man,

Jonathan Dews. (Appellant's brief at 12). Appellant claims that it was "not disputed"

that the two men "pursued" him in order to fight him and that they were the

"aggressors in this exchange." Id.

These assertions are completely adverse to the evidence before the jury. The

evidence instead shows that Appellant confronted Jonathan Dews in the mall and

challenged or provoked him to come outside the mall and fight. If the men "pursued"

Appellant at all, and the record says they did not, it was at his request.

The victim, Christopher Mass, accompanied Dews outside and was standing

approximately 20 feet away when Appellant reached into a car to get a pistol and

began shooting at the victim. There was no evidence at trial that weapons of any sort

were being displayed by Dews, or the victim, before the shooting. The victim was not

charging at Appellant when he was killed and there is no evidence in the record that

he had stated out loud any intent to harm Appellant before Appellant started shooting.

Appellant later told police that he was not threatened by Dews and that he shot the

8
victim because merely because he couldn't' see his hands and thought that he might

be armed.

Consequently, the evidence presented to the jury failed in any way to establish

that Appellant had a reasonable belief that deadly force was immediately necessary

to protect himself. The relevant portions of the State's case include the following

testimony:

1. The State's first witness was Mr. Jonathan Dews. (RR 14:18). He testified that

on the date of the offense, February 9, 2013, he went to the mall early in the morning

to buy shoes for his children and his wife. (RR 14: 21). He was by himself when he

went to the mall. (RR 14: 22). While at the mall, Mr. Dews ran into two

acquaintances, Mr, Jimmy Whitt and the victim, Christopher Mass. (RR 14: 24-27).

After speaking briefly to these men, Mr. Dews sat alone by himself at a table outside

the Chick-Fil-A food store. (RR 14: 32). At some point while Mr. Dews was looking

online at his phone, Appellant had walked up to his table and was looking down at

him. (RR 14: 35).

The jury heard that while Mr. Dews was in prison on a drug delivery charge,

his wife had developed some sort of relationship with Appellant. (RR 14: 36). After

he got home from prison, Mr. Dews had seen a text message from Appellant to his

wife asking her why she had gone back to Mr. Dews. (RR 14: 36). Dews replied to

9
the text message telling Appellant to stay out of his business. (RR 14: 36). He did not

know who Appellant was at that time. (RR 14: 37). He then recalled an incident that

occurred two weeks before the shooting where he and his wife went to a store in the

mall where Appellant worked and that Appellant was "was acting strange, like he

knew me." (RR 14: 38). No words were exchanged at that time and it was only later

that Dews learned from a friend that it had been Appellant who was acting strangely

towards him. (RR 14: 38-39). With that background, the following exchange occurred

between the two when Appellant approached Dews while he was sitting at the table

outside Chick-Fil-A:

Q. Okay. What happens once you notice Ricky Neal?

A. I looked up at him and I asked him, "Do we have a problem?"
And -- I don't know if I can say what he said.

Q. Yeah, what did he say to you?

A. He said, "You don't know me and I don't know you and we going
to keep it that way."

Q. Okay.

A. I replied back asking him, "What you mean by that?" And he
replied back, "You don't know me and I don't know you. We
going to keep it that way." And, therefore, I stood up and said,
"What you talking about?" And he stood back and told me, "I'm
going to show you about me. I'm going to go put on my shoes."
He left out the exit.
(RR 14: 40).

10
 Mr. Dews interpreted this encounter as a challenge to fight and Appellant

waved for him to follow him outside to the parking lot. (RR 14: 42). Mr. Jimmy Whitt

tried to discourage Dews from leaving the mall and told him "Don't worry about him."

(RR 14: 42). Dews ignored Whitts' advice and went outside. (RR 14: 42). The victim

had also noticed the confrontation and followed Dews as he was walking outside

asking him what was going on. (RR 14: 43). Mr. Dews told the jury that he was

walking outside to fight with Appellant. (RR 14: 43). Mr. Whitt followed as well and

both he and the victim came out of the mall together behind Dews. (RR 14: 44).

Outside, Appellant told Dews that he should have come out by himself and he

began to unbutton his shirt to take it off. (RR 14: 47-48). At that point, Mr. Dews first

realized that the victim had followed him out from the mall. (RR 14: 48). He turned

and looked back and saw Mr. Mass take off his hoodie and throw it into a car. (RR

14: 49). Appellant asked Dews if he and Mass were trying to "jump" him and Dews

said "No." (RR 14: 50). The jury heard that the victim then remained standing by his

car. (RR 14: 51-52). Dews then approached Appellant to fight. (RR 14: 52).

While the victim stood with his arms crossed, Appellant asked him who he was

and the victim replied "I'm looking out for my homeboy." (RR 14: 52). Appellant then

said "I'm going to show y'all about me" and he reached and grabbed a gun and cocked

it and pointed it at the victim. (RR 14: 52). Dews put his hands up and said "It ain't

11
that type of party," and he was backing away from Appellant when the shooting

started. (RR 14: 55-57). At the point that Appellant started shooting, neither Dews

nor the victim were approaching him. (RR 14: 56-57). The victim was still standing

by his car with his arms crossed when the shooting started. (RR 14: 57). Dews started

running away from the scene and Appellant shot at him as well. (RR 14: 58). He saw

that Christopher Mass had fallen on the ground by his car. (RR 14: 59). Before the

shooting, Appellant had focused his full attention on the victim for approximately

"seven to eight seconds." (RR 14: 59-60). The victim had not moved from the spot

where he fell and was not charging towards Appellant before the shooting started.

(RR 14: 61). Dews himself was backing up at the time that Appellant began to fire his

gun. (RR 14: 61). Dews testified that he did not have a weapon with him at the time.

(RR 14: 61).

Mr. Dews told the jury that he had followed Appellant out from the mall

because he felt that he had been invited to fight by Appellant. (RR 14: 62). He did not

ask either Whitts or the victim to help him fight with Appellant. (RR 14: 62). Dews

did not see the victim with a weapon and did not see him make any movement that

indicated that he was trying to get a weapon. (RR 14: 62). Approximately 30 seconds

after the shooting, Dews saw people running over to the victim to help him, but he did

not see anyone remove anything from the area around the victim. (RR 14: 63-64).

12
Dews testified that he had heard "three or four" total shots being fired during the

incident. (RR 14: 65).

On re-direct examination Mr. Dews testified that he did not talk to the victim

or Mr. Whitt before he went to the mall the morning of the shooting. (RR 14: 201-02).

The jury heard that when Appellant stood at the table where Dews was sitting and

stared at Dews, he was asked if he had a problem. (RR 14: 205-06). This led to the

conversation described above, the effect of which was to cause Mr. Dews to believe

that he was going to get into a fight with Appellant. (RR 14: 207). He told the jury

that when Appellant was leaving the mall to go outside, he gestured with his hand and

said "Come on" to Mr. Dews. (RR 14: 208). When Dews followed Appellant out, he

saw that the victim had stopped following him in order to speak to a female that came

up to him while he was leaving the mall. (RR 14: 211).

When Appellant pulled the gun out of his car, he held it up and cocked it and

said "I'm going to show y'all about me." (RR 14: 216). It was at that point that Mr.

Whitt ran up to Appellant and told him that no one was trying to jump him. (RR 14:

216). Before Appellant fired, no one had threatened to shoot or stab him and no one

had used any force against him. (RR 14: 218). In fact, once the gun was drawn, Dews

backed away and the victim was still standing by his car in a position further away

from Appellant than Dews. (RR 14: 218). The victim's arms were crossed when he

13
got shot and Mr. Dews testified that they were still crossed as he fell to the ground.

(RR 14: 218-19).

2. The State then called Mr. Jimmy Whitt. He testified that he went early to the

mall to buy a new style of shoe that was coming out that day. (RR 14: 228). He saw

Christopher Mass at the mall and told the jury that he knew Mass pretty well and that

they were good friends. (RR 14: 231). Whitt told the jury that he merely knew who

Jonathan Dews was, but was not friends with him. (RR 14: 232).

Mr. Whitt also knew Appellant and saw him when he came into the mall. 9RR

14: 234). He heard a heated conversation between Appellant and Dews and

understood from it that they were going to go outside and fight. (RR 14: 235). Mr.

Whitt said he heard Appellant say to Dews "come outside if he wanted to box; his

shoes was in the car." (RR 14: 236). He also saw Appellant motion towards Dews

"[k]ind of waved his hand like, "Come on." (RR 14: 237).

Mr. Whitt told the jury that before Appellant showed up at the mall, he and

Dews and the victim did not talk about him and did not know he was coming to the

mall. (RR 14: 239). The jury saw a mall security video showing Appellant making the

motion towards Dews, and Mr. Whitt told them that, when he made that motion,

Appellant said to Dews "Come outside if you want to box." (RR 14: 243). Whitt

testified that the victim was not involved in the altercation and had merely gone

14
outside to watch the fight. (RR 14: 244). He told the jury that he went outside to try

to stop the fight because "I don't want to see nobody going to jail that day." (RR 14:

245). Like Mr. Dews, Mr. Whitt told the jury that when he went outside he did not

have a weapon of any kind with him. (RR 14: 246). When he got outside, he told the

jury that:

I see Mass with his door open. And he was taking off his sweater.
And I see Dews standing at the back of the car. Walk a little further, I
see a young lady getting out the front seat of Ricky's car. And she was
walking towards the mall. On the other side of the car I see Ricky in the
back seat.
(RR 14: 246).

He approached Appellant in the back seat of his car and said to him "Man, y'all

don't need to be doing this." (RR 14: 247). Mr. Whitt continued:

Then when he came out the back seat, he had a gun. And he had
cocked the gun, and he walked toward the back of the car, like, towards
Mass and then stopped at the back of the car. Then he pointed the gun
at Mass. And I tell him, "Man, put the gun down. If y'all going to fight,
y'all going to fight. You don't need to have a weapon or whatever." Then
he just kept saying, "No. Y'all trying to jump me." And they was like,
"No, we ain't trying to jump you." Then Dews told him, "We ain't -- I
ain't trying to jump you. What you got the weapon for? Put the gun
down. We can fight."
(RR 14: 247).

Appellant asked why the victim had taken his sweater off and then started

shooting at him. (RR 14: 248). After the victim had been shot once, Mr. Whitt told

the jury that Appellant paused and then appeared to act as if he was thinking "Might

15
as well kill him. I done shot him." (RR 14: 255). Both he and Dews took off running

and Mr. Whitt could hear shots being fired. (RR 14: 257). Right before Appellant

started shooting, Mr. Whitt did not see Mr. Dews or the victim with any weapons and

they were not charging at Appellant. (RR 15: 42).

3. The State then called Ms. Kenesha Mayfield, an assistant manager at

"Champs" a sporting goods store in the mall. (RR 15: 46). She identified Appellant

as a former employee. (RR 15: 47). Appellant worked approximately 2 ½ weeks

before the shooting and was not scheduled to come to work on the day of the offense

alleged by the indictment. (RR 15: 47). She arrived at the mall around 9:00 and had

spoken to Appellant before she arrived. (RR 15: 47). She also saw Appellant when

she arrived and he was exiting the mall. (R 15: 48). She could not remember what

they spoke about but agreed that it was not anything significant. (RR 15: 48).

Ironically, She also stopped and spoke to the victim as he was leaving the mall

with another man and gave him a hug. She went to school with the victim and hadn't

seen him in awhile. (RR 15: 49). The other man, which the evidence shows was Mr.

Dews, continued on out of the mall while she and Christopher Mass spoke to each

other. (RR 15: 49). According to this witness, neither Appellant nor the victim

appeared upset or gave the appearance that anything was wrong. (RR 15: 50). Less

than 15 minutes later, there was chaos in the mall and it was obvious to Ms. Mayfield

16
that something had happened. (RR 15: 50). She did not go outside and was unaware

of what had occurred in the parking lot. (RR 15: 52).

4. After Ms. Mayfield left the stand, the State called Mr. Quinton Smith. (RR

15: 54). He was at the mall on the morning of the shooting to see if he could buy a

pair of shoes. He saw the victim and Mr. Whitt and was talking with them when

Appellant showed up at the mall. (RR 15: 56). He later saw Appellant "get into it"

with Mr. Dews by the Chick-Fil-A and they were not having a friendly conversation.

(RR 15: 55-56). It was a loud conversation and he noticed Appellant motioning Mr.

Dews to follow him outside. (RR 15: 57-58). He followed Appellant, Mr. Dews, the

victim and Mr. Whitt when they left to go outside. When he went outside, he saw

Appellant at his car and Mr. Dews was "kind of, like, parallel to the car that was

between Chris' and Ricky's. And then I seen Chris taking off his jacket and putting

it in the car." (RR 15: 59). He then saw Appellant pull a gun out of his car and

"immediately" cocked the gun and pointed it at the victim. (RR 15: 60). As he

pointed the gun, Mr. Smith heard Appellant saying something to the effect of "I told

y'all I was going to be ready." (RR 15: 60). He then saw Mr. Whitt trying to calm

Appellant down and to get him to put the gun away. (RR 15: 61). Appellant then

started firing at the victim and he saw him get hit. (RR 15: 61). He stepped back

inside the mall to look for security. When he went back outside after the shooting,

17
he saw Chris Mass on the ground bleeding and struggling to breathe. (RR 15: 62-63).

According to this witness, Appellant fired "two or three" times. (RR 15: 63). The jury

then heard the following testimony from Mr. Smith:

Q. This whole time you were outside, before the shots rang out, did
you see anybody, at any time, throw a punch at Mr. Neal?

A. Not at all.

Q. Charge Mr. Neal?

A. Not at all.

Q. Move around the car with -- around towards him?

A. Not at all.

Q. No aggressive move whatsoever?

A. No, sir.

Q. Then you saw Mr. Neal shoot him in the chest?

A. Yeah.
(RR 15: 63).

On cross-examination, Mr. Smith told the jury that he only knew of the victim

from seeing him at clubs and did not personally know him. (RR 15: 65). He didn't

know Mr. Dews at all. (RR 15: 67). He knew Mr. Whitt but was not friends with him.

He told the jury it was a coincidence that they all were at the mall at the same time to

buy shoes. (RR 15: 68). He stated that he did not speak to any of these men on the

18
phone before he came to the mall. 9RR 15: 69-70). He did not hear Appellant say

anything to Mr. Dews as he was motioning for Dews to follow him outside. (RR 15:

71).

5. The State then called Ms. Tamara Norris, Appellant's girlfriend of four years.

(RR 15: 85). She first told the jury that she refused to come talk to prosecutor prior

to trial. (RR 15: 85). She told the jury that she and Appellant came early to the mall

on the day of the offense to buy shoes. 9RR 15: 87). She remained in the vehicle as

Appellant went inside. Shortly thereafter, Appellant came back to the car:

Ricky gets out to go in the mall to buy the shoes because he was
going to run in real quick to get the shoes and come on out. And he
hadn't been in there but for a few minutes, and he comes back out of the
hall and he hands me my debit card and he was like, "Go in there and get
the shoes."
(RR 15: 89).

When Appellant came out, she noticed that three others were following him.

Appellant gave her a debit card and said "These niggers tripping." (RR 15: 92). She

recalled telling police that the men were arguing amongst themselves and she could

not recall if Appellant was saying anything. (RR 15: 95). She continued towards the

mall until she heard the sound of gun being cocked and then she started to run into

the mall. (RR 15: 97). Ms. Norris told the jury that prior to coming to the mall,

Appellant had placed a black bag on the back seat of her vehicle. (RR 16: 15-16).

19
According to her, Appellant would usually carry "hair grease, hair brush, probably

deodorant, just personal things" in the bag. (RR 16: 16). When Appellant told her

about the others "tripping" he appeared upset and she could tell from his face that

something was going on. (RR 16: 20). Ms. Norris did not remember telling police on

the day of the offense that Appellant walked to the passenger side of her car and

opened the back door. (RR 16: 25). She had a feeling that something was going to

happen, but she did not know what it was going to be. (RR 16: 31-32).

Ms. Norris admitted that she had in a prior statement told police that Appellant

said to the other men "This is what you want to do? This is what y'all want to do?"

while standing by the passenger side of her car. (RR 16: 41). She did not see any of

the men that were there displaying a weapon. (RR 16: 43). She began running

towards the mall upon hearing Appellant cock his pistol and once inside, she heard

gunshots. (RR 16: 44). She reluctantly admitted that she believed that Appellant was

the person who fired the gun. (RR 16: 46). She reported to a security officer that a

shooting had taken place outside because she believed that Appellant had just shot

someone. (RR 16: 49).

When she went outside, she saw Appellant standing by her car talking on the

phone and the victim was on the ground bloodied and trying to breathe. (RR 16: 51).

Ms. Norris told the jury that although Appellant looked upset, he did not appear to be

20
afraid. (RR 16: 55). She knew that Appellant carried a gun. (RR 16: 63). She had also

once seen him put the gun in the black bag that he carried with him and which he had

loaded into her car on that day. (RR 16: 64).

6. The next witness relevant to the issue of self-defense was Tyler Police

Department Detective Donald Malstrom. (RR 16: 160). He was involved in the

investigation in this case. In the context of this point of error, Det. Malstrom told the

jury that he found no weapons in the victim's car. (RR 16: 172). He recovered four

spent shell casings at the scene and Appellant's .40 caliber semi-auto handgun. (RR

16: 179-80). The victim's body was laying approximately 31 feet from where

Appellant was said to be standing as he shot. (RR 16: 200).

7. The State then called Tyler Police Department Detective Craig Shine, who

was also involved in the investigation. (RR 16: 215). Det. Shine was the primary

investigator in this case. (RR 16: 221). He interviewed Appellant on the morning of

the murder. (RR 16: 222). Appellant was heard telling Det. Shine on the video of his

interview that he had said to Mr. Dews while in the mall "I don't even know why you

speaking on me. I'm not some other dude out here, Bro. You don't scare me. I don't

fear you." (RR 16: 226). Appellant mentions in his brief that both the victim and Mr.

Dews are "both large men." (Appellant's brief at 12). In regards to Appellant's size the

record shows:

21
 Q. (By Mr. Wood) Detective Shine, while we're in the process of
describing individuals, how big a guy is Ricky Neal?

A. He's a good-sized fellow.

Q. Okay. Did you ever pat him down or anything and search
weapons or anything on him?

A. I did. At one point, he asked to go to the bathroom and I patted
him down.

Q. Okay. Muscular guy?

A. I told one of the guys I worked with, "It's like patting down a tree
trunk in khakis." Seemed like a pretty solid guy to me.

(RR 16: 231).

More importantly, Appellant made it clear to Det. Shine that when he pulled

his gun out and started shooting, there were no threats being made to his life:

Q. Okay. In his words, he cocks the gun; is that correct?

A. Yes, sir.

Q. And Dews, when he cocked the gun, ran. Is that what he said?

A. Yes, sir.

Q. And then he shot at Christopher Mass?

A. Yes, sir.

Q. Why did he say that he shot at Christopher Mass?

A. Chris had been in his vehicle and he couldn't see through the car.

22
 Q. Ultimately, you asked did he have a weapon. And what was his
response to that?

A. No, he did not.
(RR 16: 232).

Appellant told Det. Shine that when he went to the back seat of his car to grab

his gun Dews was approximately "five to 6 feet" away and that the victim was

standing "about twenty feet" from him. (RR 16: 234). He told the detective during the

interview that he did not know Christopher Mass at all. (RR 16: 234-35). Appellant

confirmed during the interview that he never saw either Dews or the victim with a

weapon before he shot at them. (RR 16: 235). Appellant told the detective that he did

not consider Mr. Dews to be a threat. (RR 16: 235). Even though he repeatedly told

the detective that he saw no weapons, Appellant claimed to have shot Christopher

Mass simply because he "[didn't] know if Christopher Mass got a weapon out of the

car." (RR 16: 235). Appellant was not afraid of Mr. Whitt either, and described him

during the interview as a friend of his. (RR 16: 236).

Appellant also diagramed the scene for Det. Shine. In his drawing Appellant

showed that he was standing a short distance from the passenger side of his

girlfriend's car and he drew the victim moving from the driver's door of his car to near

the rear end of the vehicle on the driver's side. (RR 16: 239-39; RR 19: State's Exhibit

#58). Appellant said that he was in fear of his life when he shot the victim. (RR 16:

23
241). However, he also shot at Mr. Dews, who was running away from him when he

fired. (RR 16: 247). The interview further revealed that prior to the shots being fired,

nobody had threatened Appellant, nobody had used force against him and he saw no

weapons on either Dews or the victim. (RR 16: 247; RR 17: 43-44). In conflict with

the testimony of other witnesses, Appellant also told Det. Shine that he was unaware

that Dews and the victim had followed him out into the parking lot. (RR 16: 249).

Appellant also told the detective if "he had had some tennis shoes, it would

have been a whole different ball game." (RR 16: 251). Detective Shine took this to

mean that he would have fought with Dews. (RR 16: 251). And, even though Dews

was standing in much closer proximity to him than the victim at the time of the

shooting, Appellant repeatedly told Det. Shine that he did not feel threatened by

Dews. (RR 16: 256). Appellant "made it clear" that he did not know the man he had

killed by telling Det. Shine that repeatedly. (RR 16: 257; RR 17: 44). According to

his investigation, Det. Shine concluded that Appellant had "accepted the challenge"

to fight with Dews in the parking lot. (RR 16: 258).

In addition to Appellant repeatedly telling Det. Shine that he never saw a

weapon on Dews or the victim, the jury also heard:

Q. Obviously, throughout this investigation, people are coming to
you and telling you kind of stories about what's going on at the
scene, right?

24
 A. Yes, sir.

Q. There were civilians out there, correct, I guess, at the scene?

A. Yes, sir.

Q. First responding officer's there at the scene, right?

A. Yes, sir.

Q. Did anybody out there at the scene ever communicate to you that
anybody else was in possession or had or was hiding or anything
else, throwing on top of roofs, a weapon?

A. No, sir.
(RR 17: 44).1

The jury also heard that Detective Shine did not uncover during his

investigation any evidence that indicated that Mr. Dews, the victim and Mr. Whitt had

formulated a plan to attack Appellant that morning at the mall. (RR 17: 50).

After Det. Shine left the stand. The State rested its case-in-chief. (RR 17: 59).

Appellant did not make a motion for a directed verdict before calling his first witness.

(RR 17: 59-61). Furthermore, Appellant asserted his right to refuse to testify and the

jury did not hear any direct evidence from him concerning his actions during the

murder of Mr. Mass. (RR 17: 137).

1
As further illustration of the nature of the testimony concerning Mr. Dews or the victim
having a weapon, the trial court told Appellant's attorney, "I've heard zero evidence of
anyone in the parking lot, other than your client, having a weapon." (RR 17: 131).

25
D. The Evidence Supported the Jury's Verdict

Appellant contends the proof is insufficient to show beyond a reasonable doubt

that he was not acting in self-defense when he shot Mr. Mass. However, it is

undisputed that every eyewitness to the shooting testified that neither Mr. Dews, the

victim, or Mr. Whitt were displaying weapons, charging towards Appellant,

attempting to physically attack him, or making verbal threats upon his life prior to the

moment when Appellant fired three rounds into the victim's head and chest. He then

shot at least once at Mr. Dews as he was running away from the scene. In fact, the

evidence was further undisputed that Mr. Dews began backing away from Appellant

once he pulled and cocked his gun and that the victim was standing with his arms

crossed approximately twenty feet away from Appellant when he was shot.

The Jackson v. Virginia standard of review allows a jury to resolve fact issues

and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319; Lucio

v. State, 351 S.W.3d 878, 894 (Tex.Crim.App. 2011). With respect to testimony of

witnesses, the jury is the sole judge of the credibility and weight to be attached

thereto, and when the record supports conflicting inferences, the Court should

presume that the jury resolved the conflicts in favor of the verdict, and defer to that

determination. Jackson, 443 U.S. at 319. "Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the

26
incriminating circumstances is sufficient to support the conviction." Hooper, 214

S.W.3d at 13.

From the record, Appellant did not have a reasonable belief that deadly force

was immediately necessary under the facts as presented to the jury. TEX. PENAL CODE

ANN. §§ 1.07(a)(42), 9.32(a), (b) (Vernon 2012); Whipple v. State, 281 S.W.3d 482,

496-497 (Tex.App. – El Paso 2008, pet. ref'd). A jury may reasonably base its

rejection of a self-defense claim on "inconsistencies between Appellant's version of

the events and the physical and medical evidence, and the testimony of other

witnesses." Id. at 497. In addition, given Appellant's video statement was inconsistent

with practically every witness to the shooting, "the jury could have found that the

self-defense claim was simply not believable." Id. at 497.

The law provides that the jury is free to resolve the conflict in favor of the

State. Davis v. State, 840 S.W.2d 480, 483 (Tex.App. – Tyler 1992, pet. ref'd).

"When the record supports conflicting inferences, we presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination." Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007). "What

weight to give contradictory testimonial evidence is within the sole province of the

jury, because it turns on an evaluation of credibility and demeanor." Cain v. State,

958 S.W.2d 404, 408-409 (Tex.Crim.App. 1997).

27
 Importantly, "[d]efensive evidence which is merely consistent with the physical

evidence at the scene of the alleged offense will not render the State's evidence

insufficient since the credibility determination of such evidence is solely within the

jury's province and the jury is free to accept or reject the defensive evidence." Saxton,

804 S.W.2d at 914. And, "simply because appellant presented a different version of

the events, the evidence is not rendered insufficient." Anderson v. State, 701 S.W.2d

868, 872 (Tex.Crim.App. 1985).

Thus, viewed in the light most favorable to the verdict, the evidence in this case

was legally sufficient to support Appellant's conviction for murder and the jury's

implicit rejection of his theory of self-defense. Appellant's first point of error has no

merit and should be overruled.

COUNTERPOINT TWO: The trial court properly excluded character evidence that
the victim may have allegedly been a gang member.

A. Summary of Argument

Appellant's second point alleges that the trial court in refusing to admit

evidence that Appellant's attorney had been informed by a police gang expert that the

victim, Christopher Mass, was an "active member" of the Rolling Sixties street gang.

(Appellant's brief at 16-18). However, the trial court correctly ruled that such

evidence was not admisible where Appellant did not know the victim and was

28
completely unaware of the victim's background. And, there was no evidence that the

victim was the first agressor in this case.

B. The Standard of Review

This Court should review a trial court's decision to admit or exclude evidence

under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim.App. 2002). An abuse of discretion occurs when the trial court acts arbitrarily

or unreasonably, without reference to guiding rules or principles. See Montgomery

v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). The trial court is given wide

discretion and latitude in its decision and this Court should not reverse an evidentiary

ruling as long as it is “within the zone of reasonable disagreement.” Torres, 71

S.W.3d at 760. The trial court’s ruling should not be disturbed under an abuse of

discretion standard simply because this Court might decide a question differently than

the trial judge. Montgomery, 810 S.W.2d at 391. Moreover, an appellate court may

uphold the trial court's ruling on the admission or exclusion of evidence on any legal

theory or basis applicable to the case. Martinez v. State, 91 S.W.3d 331, 336 (Tex.

Crim.App. 2002).

Appellant here asserts error in the exclusion of alleged evidence that the victim

was an active member of a criminal street gang. In denying Appellant's request for

admission of this evidnece, the trial court relied heavily upon the Court of Criminal

29
Appeals' decision in Ex parte Miller, 330 S.W.3d 610 (Tex.Crim.App. 2009). (RR 14:

8, 11). In Ex parte Miller, the Court was reviewing an application for a writ of habeas

corpus alleging ineffective assistance of counsel for several grounds, one of which

was that counsel "failed to present testimony regarding prior acts of violence

committed by the deceased and his companion." Id. at 614-15. In refusing relief on

that ground the Court explained:

The rules of evidence permit the defendant to offer evidence
concerning the victim's character for violence or aggression on two
separate theories when the defendant is charged with an assaultive
offense, as applicant was in this case.

First, the defendant may offer reputation or opinion testimony or
evidence of specific prior acts of violence by the victim to show the
"reasonableness of defendant's claim of apprehension of danger" from
the victim. This is called "communicated character" because the
defendant is aware of the victim's violent tendencies and perceives a
danger posed by the victim, regardless of whether the danger is real or
not. This theory does not invoke Rule 404(a)(2) because Rule 404 bars
character evidence only when offered to prove conduct in conformity,
i.e., that the victim acted in conformity with his violent character. Here,
the defendant is not trying to prove that the victim actually is violent;
rather, he is proving his own self-defensive state of mind and the
reasonableness of that state of mind.

Applicant did not know Burleson; he was unaware of his
character for violence. Thus, applicant's counsel did not, and could not,
offer "communicated character" evidence.

Second, a defendant may offer evidence of the victim's character
trait for violence to demonstrate that the victim was, in fact, the first
aggressor. Rule 404(a)(2) is directly applicable to this theory and this

30
 use is called "uncommunicated character" evidence because it does not
matter if the defendant was aware of the victim's violent character. The
chain of logic is as follows: a witness testifies that the victim made an
aggressive move against the defendant; another witness then testifies
about the victim's character for violence, but he may do so only through
reputation and opinion testimony under Rule 405(a). [footnotes
omitted].
Ex parte Miller 330 S.W.3d at 618-19.

C. Application to the Facts of the Case

In the instant case, there has been no extrinsic evidence that the victim was in

fact an "active member" of a criminal street gang. In support of his proffer at trial,

Appellant merely informed the Court that he had received "a letter from Detective

Miller saying that he believes Mr. Mass to be in the Rolling 60s street gang." (RR 13:

286-87). The letter was not made part of this record, and the State disputed that the

victim was an "active" member, although admitted that he may have been an associate

of the gang. (RR 13: 289) ("I can't say, Your Honor, whether or not he's actually

documented as a member of the Rolling 60s or if it's just an affiliation with that gang,

the Rolling 60s. Again, I'm not trying to sit here and tell this Court that I don't

necessarily know if Chris Mass was affiliated with certain gang members, the Rolling

60s or whatever.").

Moreover, Det. Miller, a criminal street gang expert, was called by the State as

a punishment witness in this case and Appellant did not seek any testimony from him

31
regarding this claim. (RR 18: 62- 87).2 As such, the Court does not have sufficient

record before it to accurately review this point and it should be overruled on that

basis. See, TEX. R. APP. PROC. Rule 38.1 (i) (Vernon 2015) ("[Appellant's] brief must

contain . . . appropriate citations to authorities and to the record.").

More importantly the record supports the trial court's exclusion of the alleged

evidence of the victim's gang membership. Appellant told Det. Shine several times

during his interview that he did not know who the man was that he shot. (RR 16: 257;

RR 17: 44). There is likewise no other evidence from any other source at trial that

showed that Appellant knew who he had killed. Consequently, the evidence of the

victim's alleged "active" membership would not be admissible under the

"communicated character evidence" theory discussed above by the Court of Criminal

Appeals in the Ex parte Wheeler case. See Ex parte Miller 330 S.W.3d at 618-19.

Similarly, the same evidence would not be admissible under the

"uncommunicated character evidence" theory described in Ex Parte Wheeler because

there is absolutely no evidence in the record that the victim was the first aggressor.

See Ex parte Miller 330 S.W.3d at 618-19. The record instead shows that only Dews

2
Ironically, Det. Miller was called to establish that, based upon the "constant theme of
Bloods or a Blood set" seen in Appellant's tattoos, there was a "high probability" that he
was himself a member of a criminal street gang. (RR 18: 73-83; RR 19: State's Exhibits
P4-P25).

32
and Appellant had angry words while inside the mall and that the victim had no

contact with Appellant during that argument. (RR 14: 244; RR 17:13). The evidence

further showed that Christopher Mass was standing at least 20 feet away from where

Appellant and Mr. Dews were getting ready to fight when he was shot. Every

eyewitness to the murder, including Appellant, stated that Christopher Mass was

standing by his car and not making any aggressive moves towards Appellant when

Appellant started shooting. (RR 14: 57-58, 61; RR 15: 42, 63; RR 16: 232, 247; RR

17: 43-44). Notably, Appellant did not even inform the trial court that he had a

reputation or opinion witness available and able to testify concerning the victim's

character for violence.

Consequently, the facts of this case are very consistent with those discussed in

by the Court of Criminal Appeals in Ex parte Miller in deciding that the character

evidence of the victim in that case was not admissible. See Ex parte Miller, 330

S.W.3d at 618-19. Where the trial court properly applied the law to the facts of this

case, there was no abuse of that court's discretion as alleged under this point of error

and it should be overruled. See Martinez, 91 S.W.3d at 336.

COUNTERPOINT THREE: The contentions raised in Appellant's third point of
error should be overruled as multifarious. Alternatively, the trial court did not
err in the exclusion of evidence concerning the victim's alleged membership in
a criminal street gang.

33
A. Summary of Argument

Appellant argues under his multifarious third point that the trial court erred in

limiting his cross examination of Mr. Dews to exclude evidence that he knew the

victim through "members of the West Side Crips." (Appellant's brief at 19). Appellant

argues under the same point that the trial court violated his 6th Amendment right to

confrontation in preventing him from cross-examining Mr. Dews on the manner in

which the victim's pants were worn low allegedly making him "look like a violent

thug." (Appellant's brief at 20). Appellant also complains that the trial court's

exclusion of this testimony made him unable to "make a record from which to argue

[why] the witness might have been biased or otherwise lacked that degree of

impartiality expected of a witness at trial." (Appellant's brief at 21).

However, the law provides that multifarious points of error are improper and

this point should be overruled for being multifarious. In addition, where the trial court

properly decided that evidence of the victim's alleged gang membership was not

admissible, the court correctly sustained the State's objections to Appellant's attempt

to "back door" that same evidence during his cross-examination of Mr. Dews.

In any event, the record included photographs of the victim lying dead where

he was shot and which depict the manner in which he was dressed. (RR 19: State's

Exhibits 50-53).

34
B. Multifarious points are improper and present nothing for review

A point of error or argument is multifarious if it combines more than one

contention in the point or argument. See Sterling v. State, 800 S.W.2d 513, 521

(Tex.Crim.App. 1990); Michael v. State, 864 S.W.2d 104, 109 (Tex.App. - Dallas

1993, no pet.). Here, Appellant argues under a single point the alleged improper

exclusion of two separate pieces of evidence under two separate legal theories and

also complains that the trial court improperly prevented him from making a record.

By combining more than one contention under a single point of error, Appellant

presents nothing for review. Sterling, 800 S.W.2d at 521; see also Murphy v. State,

864 S.W.2d 70, 72 (Tex.App. - Tyler 1992, pet. ref'd) ("The failure of an appellant

to separate federal and state issues into separate grounds allows the point of error

raising constitutional challenges to be overruled as multifarious."). Appellant's third

point of error should be overruled.

C. There was no error

In the interest of judicial economy, the State would refer the Court to its

arguments in response to Appellant's second point regarding the trial court's

discretion in properly excluding any evidence concerning the alleged membership of

the victim in a criminal street gang. The State would submit that, since the trial court

correctly excluded the evidence of the victim's gang membership under the reasoning

35
argued by the State above, the same evidence was clearly not admissible through the

"back door" in allegedly "impeaching" Mr. Dews on cross-examination. See Ex parte

Miller, 330 S.W.3d at 618-19.

Moreover, Appellant's curious claim that the trial court somehow prevented

him from "making a record" is entirely adverse to the record of this case - which

includes an extensive discussion between the parties and the trial court specifically

concerning the admissibility of evidence of the victim's possible gang membership.

(RR 14: 7-13). Similarly, Appellant's proffer that the evidence of the manner in which

the victim wore his pants made him "look like a violent thug" is also contained in the

record. (RR 14: 119).

Based upon the arguments in this brief's response to Appellant's second point,

the trial court properly excluded the evidence of the victim's alleged gang

membership from Appellant's cross-examination of Mr. Dews. There is no merit to

this point and it should be overruled.

COUNTERPOINT F OUR: The trial court properly charged the jury on the law of
self-defense.

A. Summary of Argument

Appellant's fourth point of error complains that the trial court improperly

charged the jury regarding the law of self-defense by submitting to the jury an

36
instruction which accurately followed Texas Penal Code § 9.31. (Appellant's brief at

22-34). The evidence in this case supported such a charge and the instruction

correctly stated the law of self-defense as applied to the facts of the offense.

B. Standard of Review

In analyzing a jury-charge issue, the Court's first duty is to decide if error

exists. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1985). Only if error

is found should the Court then consider whether an objection to the charge was made

and analyze for harm. Id. "The degree of harm necessary for reversal depends upon

whether the error was preserved." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.

App. 1996). If "an error is preserved with a timely objection...then the jury-charge

error requires reversal if the appellant suffered some harm as a result of the error."

Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) citing Almanza, 686

S.W.2d at 171. The failure to preserve jury-charge error is not a bar to appellate

review, but rather it establishes the degree of harm necessary to the reversal. Warner

v. State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008).

When determining whether a defendant suffered harm, "the reviewing court

must consider: (1) the entire jury charge; (2) the state of the evidence, including the

contested issues and weight of probative evidence; (3) the argument of counsel; and

(4) any other relevant information revealed by the record of the trial as a whole." Id.

37
To establish harm, the "appellant must have suffered actual, rather than theoretical,

harm." Id.

In addition, a charge limiting a defendant's right of self-defense is properly

given when (1) self-defense is an issue, (2) there are facts in evidence that show the

defendant sought an explanation from or discussion with the victim concerning their

differences, and (3) the defendant was unlawfully carrying a weapon. See TEX. PENAL

CODE ANN. § 9.31(b)(5)(A) (Vernon 2013); Lee v. State, 259 S.W.3d 785, 789 (Tex.

App. - Houston [1st Dist.] 2007, pet. ref'd). To determine whether the limitation was

warranted, the Court should view the evidence in the light most favorable to giving

the instruction. See Fink v. State, 97 S.W.3d 739, 743 (Tex.App. - Austin 2003, pet.

ref'd). If there is any evidence raising a fact issue on the limitation, an instruction

should be submitted. Bumguardner v. State, 963 S.W.2d 171, 175-76 (Tex. App. -

Waco 1998, pet. ref'd).

C. Application to the Facts of the Case

In this case, the evidence showed that Appellant had established a relationship

with Mr. Dew's wife while Dews was in prison. (RR 14: 36). After he got home from

prison, Mr. Dews had seen a text message from Appellant to his wife asking her why

she had gone back to Mr. Dews. (RR 14: 36). Dews replied to the text message telling

Appellant to stay out of his business. (RR 14: 36). A few weeks prior to the killing

38
of Christopher Mass, Dews and his wife were in the shoe store where Appellant

worked and Appellant was "was acting strange, like he knew me." (RR 14: 38). No

words were exchanged at that time and it was only later that Dews learned from a

friend that it had been Appellant who was acting strangely towards him. (RR 14: 38-

39). As a result of this testimony, the jury was aware that there was a point of

contention between the two concerning Mrs. Dews. It would not be surprising to the

jury then to hear that, on the day of the murder, Appellant and Dews had another

confrontation that led to a challenge to settle their differences outside. (RR 14: 40-42,

62, 235-37, 243; RR 15: 55-58). However, instead of immediately squaring off once

they got outside, Appellant led Dews and the victim towards his girlfriend's vehicle

where he had concealed his semi-auto pistol.3 Then, with the stated intent of showing

Dews and the victim "about me," he pulled the pistol and proceeded to shoot and kill

Mr. Mass. (RR 14: 52, 216).

The evidence further showed that Appellant had only recently obtained the gun

and had begun carrying it around with him in a black bag. (RR 16: 64). As the trial

3
Appellant has persistently and incorrectly stated that Dews and the victim "pursued" him
out of the mall. See (Appellant's brief at 12, 34, 37, 74). However, there is absolutely no
evidence of anyone chasing Appellant in the record. The testimony of the eyewitnesses,
and the mall security videos, both show that Appellant motioned for Dews to follow him
and that every one involved had walked outside. (RR 14: 42-43, 62, 208, 235-37; RR 15:
57-58). The victim even stopped in his "pursuit" of Appellant to briefly speak to an old
friend on his way out to the parking lot. (RR 14: 211; RR 15: 49).

39
court reasoned, the law allowed for the weapon to be concealed in Appellant's

girlfriend's car, but not to display it in a public parking lot. (RR 17: 176). See TEX.

PENAL CODE ANN. § 46.02 (a) (2) (Vernon 2013).

Although not argued at trial, the record is less than clear whether Appellant was

legally entitled to carry his gun in his girlfriend's car. Penal Code § 46.02 (a) (2) only

permits a gun to be carried inside a vehicle "that is owned by the person or under the

person's control." See TEX. PENAL CODE ANN. § 9.31(b)(5)(A) (Vernon 2013). The

evidence at trial showed that the Appellant's girlfriend repeatedly referred to the

vehicle as being hers, that she drove Appellant to the mall, and was still sitting in the

driver's seat shortly before the offense occurred. (RR 15: 90-92; RR 16: 16, 26, 42,

50). There was absolutely no evidence at trial that Appellant owned the vehicle, or

had control of it at the time of the offense. As such, he was not legally carrying his

pistol in the car. See Moore v. State, 392 S.W.3d 697 (Tex. App. Dallas 2010, no pet.)

(defendant not entitled to self-defense charge where he possessed a handgun and was

"neither on premises he owned or controlled nor en route to a vehicle he owned or

controlled.").

Moreover, once Appellant pulled the gun out of his girlfriend's car, the trial

court explained that he was in commission of the offense of unlawfully carrying a

weapon. (RR 17: 176). ("A shotgun, you can have that outside your vehicle safely.

40
No illegality there as I understand the law. . . Concealed handgun weapons, though,

make a completely different event."); see also (RR 15: 105) ("I think having a gun in

a car at a public mall - haven't had to look at it, but I suspect probably having it in the

car is not an illegal act. . . Once you choose to retrieve the gun from the car and

display it publicly, I think you probably trigger this unlawful carrying of a handgun -

particularly, if you don't have a license.").

Consequently, there was evidence in the record upon which the jury could have

decided that Appellant was not entitled to the defense of self-defense under Penal

Code § 9.31(b)(5)(A) where he was unlawfully carrying a weapon. The law provides

that if there is any evidence raising a fact issue on the limitation, an instruction should

be submitted. Bumguardner, 963 S.W.2d at 175-76. There was thus no error for the

trial court to submit the complained-of charge and Appellant's fourth point should be

overruled.

COUNTERPOINT F IVE: Where the trial court properly charged the jury on the law
of self-defense, as charge on necessity was not applicable.

A. Summary of Argument

Appellant argues under his fifth point that the trial court erred when it refused

his requested charge of necessity found under Penal Code § 9.22. (Appellant's brief

at 35-39). However, there was no error where the law provides that where self-

41
defense is an issue raised at trial, a charge of necessity under that section of the penal

code is inapplicable.

B. The Law of Necessity

Under Section 9.22 of the Texas Penal Code, conduct is justified under

necessity, if

(1) the actor reasonably believes the conduct is immediately
necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly
outweigh, according to ordinary standards of reasonableness, the
harm sought to be prevented by the law proscribing the conduct;
and

(3) a legislative purpose to exclude the justification claimed for the
conduct does not otherwise plainly appear.

TEX. PENAL CODE ANN. § 9.22 (Vernon 2013).

Thus, if there is a plain legislative purpose to exclude the defense of necessity,

then subsection (3) precludes its application. Courts have consistently held that a

defendant is not entitled to an instruction on necessity when self-defense using deadly

force is an issue since including an instruction on necessity "would undermine the

Legislature's purpose in imposing the duty to retreat" in Section 9.32 of the Texas

Penal Code. See Searcy v. State, 231 S.W.3d 539, 544 (Tex.App. - Texarkana 2007,

pet. ref'd); Butler v. State, 663 S.W.2d 492, 496 (Tex.App. - Dallas 1983), aff'd on

42
other grounds, 736 S.W.2d 668 (Tex.Crim.App. 1987); Hunter v. State, No.

14-08-00202-CR, 2008 Tex.App. LEXIS 9139 at * 6-8 (Tex.App. - Houston [14th

Dist.] Dec. 9, 2008, no pet.) (not designated for publication); Wilson v. State, No.

06-14-00021-CR, 2014 Tex.App. LEXIS 12188 at *15-17 (Tex.App. - Texarkana

Nov. 7, 2014, pet. ref'd) (not designated for publication).4

Since the jury in this case was fully charged on the law of self-defense as raised

by the evidence, the reasoning in these cases is applicable and controls the issue

raised under Appellant's fifth point. There is no merit to that point and it should be

overruled.

COUNTERPOINT SIX: The trial court properly excluded the hearsay testimony of
Mr. Wilmon Davis.

A. Summary of Argument

Appellant complains under this point that the trial court erred in excluding

testimony from Mr. Wilmon Davis that he thought he might have heard someone

standing in a group of pants-sagging "thugs" say "He might get shot" or "He's going

to get shot." (Appellant's brief at 39-56). However, besides the obvious fact that this

is blatant hearsay without any exception, Appellant has misrepresetned the record to

4
The State proffers unpublished opinions to point out the reasoning of the courts therein
when faced with very similar facts “rather than simply arguing without reference, that
same reasoning.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex.App. - Amarillo 2003, pet.
ref’d).

43
make it appear as if the victim, Mr. Christopher Mass, was within this group in a vain

attempt to garner merit for this point.

B. Appellant has Misrepresented the Record

In alleging error under this point, Appellant states that Mr. Davis testified that

the victim, Christopher Mass, was amongst the "group of thugs" that he walked by

when he overheard the alleged hearsay statement. See (Appellant's brief at 54-55)

("Davis recalled that Mass was one of the males standing in group that he overheard

. . ."). This assertion is entirely incorrect as the record shows that Mr. Davis stated the

following:

Q. Okay. And you thought he was part of that group, part of the
sagging group?

A. Yes, sir. Yes, sir. He was - the little man - the young man that
got killed, he never moved until I saw him the last time. He's
standing on that display they had in front of Champ and
JCPenney.

Q. Was he standing there with these other people?

A. No, he's standing by himself. I walked right by him every time
I make my round, right by him.

Q. So if I understand correctly, the person that was out on the
ground, the person who's deceased -

A. Yes, sir.

Q. - you did see that person in the mall?

44
 A. Yes, sir. I walked by him about four times.

Q. And you're saying he was not part of that group where someone
said -

A. They wasn't just bundled up. They was two or three here or two
or three there. But he was always by himself.

Q. Okay. I'm just trying to be clear that the person that was on the
ground was not part of the group or was he part of the group that
said that statement?

A. I'm going to have to say I ain't seen him talk to nobody.
Because I always saw him every time -- it take me about five to
six minutes to make my round. When I come back, I'm walking
about that far from him. And he's still in the same place until I
made my last round. (emphasis supplied).

(RR 17: 100-01).

Moreover, the record clearly shows that Mr. Davis could not say exactly what

the statement was that he overheard from the group. He told the trial court that what

he first thought he had heard was the group talking about basketball and the name

"Shaq O'Neal." (RR 17: 97-98). He agreed though that "at least one interpretation"

of what he heard was that "Someone's going to get shot" or words to that effect." (RR

17: 98). The State objects to all this as being improper argument to the Court. If

Appellant must misrepresent the record in order to make his argument, it would

appear his argument probably isn't worth the paper he used to make it, or the Court's

time wasted in reviewing it.

45
C. Hearsay

Nevertheless, the law provides that "hearsay" is essentially an out-of-court

statement which a party offers in evidence to prove the truth of the matter asserted in

the statement. TEX. R. EVID. 801 (d). Hearsay is generally inadmissible unless the

proponent of the evidence can show that there is an exception to that inadmissibility.

TEX. R. EVID. 802.

Thus, anything Mr. Davis may have heard another person say at the mall on the

morning that Mr. Mass was murdered would be hearsay by definition. Appellant says

there were two applicable exceptions - "excited utterance" and "present sense

impression." (Appellant's brief at 55).

To constitute as an excited utterance, a statement must relate to a startling event

or condition and have been made while the declarant was under the stress of

excitement caused by the event or condition. See TEX. R. EVID. 803 (2); Zuliani, 97

S.W.3d 589, 595-96 (Tex.Crim.App. 2003). Appellant misconstrues this exception

by arguing that Mr. Davis was under the influence of the shooting when he spoke to

police. (Appellant's brief at 55).

However, Mr. Davis was not the "declarant" of the excited utterance hearsay

statement sought to be admitted. The mystery declarant was, according to Appellant,

an unidentified "thug." And, the shooting had not yet occurred when the Mr. Davis

46
overheard the statement. As such, this exception is clearly inapplicable to what Mr.

Davis might have heard.

Similarly, a "present sense impression" is a "statement describing or explaining

an event or condition, made while or immediately after the declarant perceived it."

(emphasis supplied). TEX. R. EVID. 803 (1). Again, Mr. Davis is not the declarant of

the hearsay statement sought to be admitted. Moreover, even assuming that Mr. Davis

accurately recounted what he thought he heard, there was no evidence presented by

Appellant that the actual declarant was "explaining an event or condition, made while

or immediately after the declarant perceived it."

There likewise was no evidence presented that the mystery declarant was

observing the argument between Appellant and Dews when the statement was made.

See Ferguson v. State, 97 S.W.3d 293, 298 (Tex.App. - Houston [14th Dist.] 2003,

pet. ref'd) citing Wood v. State, 18 S.W.3d 642, 651-52 (Tex.Crim.App. 1999)

(holding statement not connected to contemporaneous observation was not present

sense impression). In short, the testimony of Mr. Davis was clearly insufficient to

establish this exception.

For these reasons there is no merit to Appellant's sixth Point or Error and it

should be overruled.

47
COUNTERPOINT SEVEN: The law does not support that Appellant's trial counsel
was ineffective, or that Appellant was harmed as a result.

A. Summary of Argument

In his seventh point of error Appellant argues that he was denied the effective

assistance of counsel where his trial attorney failed to challenge the qualifications of

the State's Gang Expert witness during the punishment phase of trial. (Appellant's

brief at 57-63). Paradoxically, the gang expert, Det. Miller, that Appellant complains

was not qualified under this point is the same witness Appellant argues should have

been allowed to testify that the victim, Christopher Mass, was an "active member" of

the Rolling Sixties street gang under his second point. (Appellant's brief at 16-18).

Nevertheless, Appellant has failed to establish that he is entitled to any relief

where the record does not demonstrate either ineffectiveness of counsel, or a resultant

harm.

B. The Strickland Standard on Direct Appeal

Traditionally, when confronted with an ineffective assistance of counsel claim

from either stage of a trial, the Court will apply the two-pronged analysis set forth by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.

Crim.App. 1986) (adopting Strickland as the applicable standard under Texas

48
Constitution). Under the first prong of the Strickland test, Appellant in this case must

satisfy his burden to show that counsel's performance was “deficient.” Strickland, 466

U.S. at 687, 104 S.Ct. 2052. “This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by

the Sixth Amendment.” Id. To be successful in this regard, Appellant “must show that

counsel's representation fell below an objective standard of reasonableness.” Id. at

688. Under the second prong, Appellant must further show that the deficient

performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052.

The appropriate standard for judging prejudice requires Appellant to “show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A

“reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. Appellant must prove both prongs of Strickland by a preponderance of

the evidence in order to prevail. McFarland v. State, 845 S.W.2d 824, 842 (Tex.

Crim.App.1992). Furthermore, claims of ineffective assistance must be firmly

founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex.App. - Amarillo 1999,

no pet.). It is axiomatic that the review of a defense counsel’s representation at trial

is highly deferential. The Court should apply “a strong presumption” that counsel’s

actions fell within the wide range of reasonably professional assistance. Strickland,

49
466 U.S. at 689. Failure of Appellant to make either of the required showings of

deficient performance and sufficient prejudice defeats the claim of ineffective

assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

Importantly, performance of counsel cannot generally be adequately examined

based on a trial court record. Kemp v. State, 892 S.W.2d 112, 115 (Tex.App. -

Houston [1st Dist.] 1994, pet. ref'd). A proper review should focus on a record

specifically targeting the conduct of trial counsel. Id. Such a record is best developed

during a hearing on application for writ of habeas corpus or motion for new trial. Id.;

Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App. 1994) (Baird, J.,

concurring).

To find that trial counsel was ineffective based on a record silent as to why trial

counsel conducted the trial as he did, would call for speculation, which is generally

not permitted. Id. Only in rare and egregious circumstances would a record on direct

appeal suffice to rebut the presumption of sound trial strategy. Kemp, 892 S.W.2d at

115; Ex parte Zepeda, 819 S.W.2d 874, 877 (Tex.Crim.App. 1991) (counsel’s failure

to request instruction on law of accomplice witness testimony constitutes ineffective

assistance of counsel according to Strickland standard); Alaniz v. State, 937 S.W.2d

593, 596 (Tex.App. - San Antonio 1996, no pet.) (record reflected counsel was

ineffective for allowing venire person who had been struck to sit on the jury).

50
C. Application of the Strickland Standard to the Facts of the Case

Appellant argues that counsel should have objected to the qualifications of Det.

Chris Miller when he was called to the stand as an expert witness on criminal street

gangs. Surprisingly, Appellant's counsel states in a footnote to this point that:

The undersigned is familiar with Detective Miller having previously
cross-examined him as a gang expert and challenged his opinions on
appeal. The undersigned therefore knows that Detective Chris Miller is
recognized as an expert witness on criminal street gangs.

(Appellant's brief at 58, fn. 1).

This statement appears to the State to constitute a waiver of any potential harm

that could have conceivably resulted from the alleged failure of counsel to challenge

Det. Miller's qualifications. It likewise establishes for the Court that appellate counsel

agrees with Appellant's trial attorney that Det. Miller was in fact qualified to offer his

opinion as an expert on criminal street gangs. See (RR 18: 72) ("I do not contest the

State's assertion that Detective Miller is an expert. I fully concur with that.").

This Court has previously decided that trial counsel is not ineffective for failing

to make frivolous objections. Sandoval v. State, No. 12-12-00366-CR, 2013 Tex.App.

LEXIS 9497, *9-10 (Tex.App. - Tyler July 31, 2013, pet. ref'd) (not designated for

publication) citing Edmond v. State, 116 S.W.3d 110, 115 (Tex.App. - Houston [14th

Dist.] 2002, pet. ref'd) (trial counsel not ineffective for failing to make frivolous

51
objections). For these reasons, there is no merit to Appellant's seventh Point of Error

and it should be overruled.

COUNTERPOINT EIGHT: The Trial Court did not err in denying Appellant's
requested lesser included offense charges where they were not supported by the
evidence.

A. Summary of Argument

Under his eighth point of error, Appellant complains that the trial court denied

his requests to charge the jury on the lesser included offenses of manslaughter,

criminally negligent homicide and deadly conduct. (Appellant's brief at 68).

However, none of the requested charges were supported by the evidence at trial.

B. Standard of Review

Regarding lesser included charges, courts apply a two-step analysis to

determine whether an instruction on a lesser-included offense should be given to the

jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Hall v. State,

225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). The first step of the analysis is a

question of law that does not depend on the evidence presented at trial. This step

compares the elements of the offense as alleged in the indictment with the elements

of the requested lesser offense. An offense will be a lesser-included offense where "it

is established by proof of the same or less than all the facts required to establish the

commission of the offense charged." TEX. CODE CRIM. PROC. ANN. Art. 37.09 (1)

52
(Vernon 2014). If this analysis supports a determination that the requested lesser

offense is a lesser-included offense, the court will move to the second step of the test

and consider whether a rational jury could find that, if the defendant is guilty, he is

guilty only of the lesser offense. Hall, 225 S.W.3d at 536. This is a fact determination

and is based on the evidence presented at trial.

If there is evidence that raises a fact issue of whether the defendant is guilty

only of the lesser offense, an instruction on the lesser-included offense is warranted,

regardless of whether the evidence is weak, impeached, or contradicted. Cavazos, 382

S.W.3d at 383.

C. Application to the Facts of the Case

In denying Appellant's requested lesser included offenses, the trial court stated

its understanding of the facts regarding the evidence from Appellant's stand point as

he explained it during his interview with police:

THE COURT: The only evidence of what your client did is, from his
perspective, is in the audio statement the State introduced as an
admission. He clearly testifies that he pulled his gun out, he aimed it at
Mr. Mass. He never saw a weapon there. He pulled the trigger twice. We
know, now, he shot three times, at least.
(RR 17: 178-79).

Appellant's trial attorney fully agreed with that statement of the facts in the

record. (RR 17: 179). Thereafter, the trial court requested that Appellant provide case

53
law to support his requested charges because "frankly, I find it to be incredible that

an appellate court would think these facts would lend to any lesser." (RR 17: 179).

Counsel was unable to produce any legal authority which stood for the proposition

that he was entitled to any of his lesser-included offenses under the specific facts of

this case. (RR 17: 180-82). Notably, counsel did not object to the final version of the

jury's charge on the basis argued under this point when the trial court requested the

parties make their objections. (RR 17: 184-89).

Both manslaughter and criminally negligent homicide are lesser-included

offenses of murder. Martinez v. State, 16 S.W.3d 845, 847 (Tex.App. - Houston [1st

Dist.] 2000, pet. ref'd) (manslaughter); Miller v. State, 177 S.W.3d 177, 182 (Tex.

App. - Houston [1st Dist.] 2005, pet. ref'd) (criminally negligent homicide).

However, a defendant's testimony that he acted in self-defense precludes a

finding that there is some evidence in the record that he is guilty only of

manslaughter, because a fact finder cannot find both that a defendant acted recklessly

and that he acted in self-defense. Martinez, 16 S.W.3d at 848; see also Alonzo v.

State, 353 S.W.3d 778, 782 (Tex.Crim.App. 2011) (noting precedents in which "[t]he

very reason for denying the manslaughter charges was that the defendants' evidence

was that in committing the homicide they acted intentionally in self-defense, not

merely recklessly").

54
 The record also lacks any evidence that Appellant is only guilty of criminally

negligent homicide. That offense requires that a person act with criminal negligence,

which involves "inattentive risk creation, that is, the actor ought to be aware of the

risk surrounding his conduct or the results thereof." Lugo v. State, 667 S.W.2d 144,

147-48 (Tex.Crim.App. 1984); see also TEX. PENAL CODE § 6.03 (d) (Vernon 2013)

(defining criminal negligence); id. § 19.05 (offense of criminally negligent homicide).

Thus, for Appellant to be have been entitled to a jury charge on criminally

negligent homicide, the record must contain "some evidence" that the defendant did

not intend the resulting death or know that it was reasonably certain to occur. Miller,

177 S.W.3d at 182. If such evidence is present, the record must contain evidence

showing that the defendant was unaware of the risk. Id. Here, there is no evidence in

the record that appellant did not intend to cause death or that he did not know it was

reasonably certain to occur when he fired three rounds into the victim's body and

another at the fleeing Mr. Dews. Nor does the record contain evidence that Appellant

was unaware of that risk. To the contrary, intentional conduct was implicit in

Appellant's statement to police. Cf. Martinez, 16 S.W.3d at 848.

Similarly, the offense of deadly conduct can be committed in two ways. A

person commits the misdemeanor version of the offense if he recklessly engages in

conduct that places another in imminent danger of serious bodily injury. TEX. PENAL

55
CODE § 22.05 (a), (e) (Vernon 2103). The felony version of deadly conduct occurs if

a person knowingly discharges a firearm at or in the direction of one or more

individuals. Id. § 22.05 (b) (1). Thus, under the facts, felony deadly conduct satisfies

the first prong of the lesser-included test because it was included in the proof

necessary to establish the offense of murder. See TEX. CODE CRIM. PROC. Art. 37.09

(1); Ortiz v. State, 144 S.W.3d 225, 233-34 (Tex.App. - Houston [14th Dist.] 2004,

pet. ref'd).

However, the second part of the test for lesser included offenses requires some

evidence in the record that would permit a jury to rationally find that if Appellant is

guilty at all, he is guilty only of deadly conduct. Sweed v. State, 351 S.W.3d 63, 68

(Tex.Crim.App. 2011). Appellant would thus qualify for a lesser-included offense

instruction only if the record contains evidence that, if believed by the jury, negates

or refutes an element of the greater offense while providing a rational alternative

finding on any associated element of the lesser offense, or is subject to different

interpretations by the jury. Cavazos v. State, 382 S.W.3d 377, 385-86 (Tex.Crim.App.

2012).

The evidence in this case includes that Appellant pointed his gun directly at the

victim and fired three times. He then also shot at the fleeing Mr. Dews. One

eyewitness testified that after the first shot, which apparently hit Mr. Mass in the

56
chest, Appellant paused and then appeared to act as if he was thinking "Might as well

kill him. I done shot him" and then continued to shoot. (RR 14: 255). Further, the jury

heard that Appellant stated to Mr. Dews that he was "going to show y'all about me"

before shooting Mr. Mass. (RR 14: 52). Similarly, Appellant's girlfriend told the jury

that she heard Appellant say while he was getting his pistol out of her car that, "This

is what you want to do? This is what y'all want to do?" (RR 16: 41).

As such, the evidence clearly indicates that Appellant fully intended to shoot

to kill when he opened fire which would negate the "knowingly discharges a firearm

at or in the direction" element of deadly conduct. There is thus no evidence that if

Appellant is guilty at all, is guilty only of deadly conduct. The trial court properly

refuse that instruction.

For these reasons, there is no merit to Appellant's eighth Point of Error and it

should be overruled.

COUNTERPOINT NINE: The Trial Court did not err in denying Appellant's
requested instruction on sudden passion where it was not supported by the
evidence.

A. Summary of Argument

Appellant argues under his final point that the trial court erred in submitting

an instruction on sudden passion during the punishment phase. However, the facts of

this case did not support such an instruction.

57
B. The Law of Sudden Passion

A defendant convicted of murder may argue at the punishment phase that he

caused the death "under the immediate influence of sudden passion arising from an

adequate cause." TEX. PENAL CODE ANN. § 19.02 (d) (Vernon 2013); see Hernandez

v. State, 127 S.W.3d 206, 210-11 (Tex.App. - Houston [1st Dist.] 2003, pet. ref'd). The

defendant has the burden to prove sudden passion by a preponderance of the

evidence. TEX. PENAL CODE ANN. § 19.02 (d) (Vernone 2013).

The theories of sudden passion and self-defense may arise out of the same

facts. Evidence of self-defense generally raises the issue of sudden passion. In fact,

"[I]t would be 'a rare instance' when issues of self-defense do not also raise issues of

sudden passion." Benavides v. State, 992 S.W.2d 511, 525 (Tex.App. - Houston [1st

Dist.] 1999, pet. ref'd). However, the converse is also true - "except in rare instances,

when the State's evidence is sufficient to overcome a claim of self-defense, it will also

be sufficient to show the absence of sudden passion." Id.

Nevertheless, sudden passion must arise at the time of the offense and cannot

result solely from former provocation. See Hernandez, 127 S.W.3d at 213. In

addition, the passion must have still existed at the time of the shooting and before

there was reasonable opportunity for the passion to cool. See Moncivais v. State, 425

S.W.3d 403, 407 (Tex.App.-Houston [1st Dist.] 2011, pet. ref'd).

58
 In this case, the evidence showed that Appellant agreed to fight with Mr. Dews

and walked out to his girlfriend's car. He had time while leaving the mall to consider

his options and the evidence shows that he made the conscious decision to not get in

the car and leave, but rather to pull out his gun. The fact that Appellant led the parties

out to the car and did not attempt to defend himself before reaching for his gun

clearly indicates that he had time to reflect upon the situtation and to make the

conscious decision to engage in his murderous conduct.

Anticipation of an event and preparation of a response indicates a defendant

had time to deliberate over an action and did not act under the immediate influence

of sudden passion. See McKinney v. State, 179 S.W.3d 565 (Tex.Crim.App. 2005)

(holding evidence that defendant went home, sat at his desk for some time, and then

retrieved his gun in preparation for fight showed deliberation and not sudden

passion).

In addition, the Court of Criminal Appeals has decided that a mere claim of

fear, as the Appellant made in the instant case, does not establish the existence of

sudden passion arising from an adequate cause. Gonzales v. State, 717 S.W.2d 355,

357-58 (Tex.Crim.App. 1986). For a claim of fear to rise to the level of sudden

passion, the defendant's mind must be rendered incapable of cool reflection. Daniels

v. State, 645 S.W.2d 459, 460-61 (Tex.Crim.App. 1983).

59
 The evidence in this case showed that Appellant's girlfriend told the jury that

he looked "upset about something" when he came to the car. (RR 16: 20). And

although she could tell he was upset "about something; but it was something that

came from inside the mall." (RR 16: 54). And, the look on Appellant's face was "just

his usual facial expression when he's upset" which was not "any different than

anything else [she'd] seen, whether it was a disagreement with [her] or anything else."

(RR 16: 55). Appellant did not look afraid to her. (RR 16: 55). But again, mere fear

is alone insufficient to support a sudden passion instruction. Daniels, 645 S.W.2d at

460-61. Appellant further held up his gun and cocked it, which caused Mr. Dews to

step back and Mr. Whitt to attemept to intervene. After that period of time where Mr.

Dews and the victim were frozen in place by the obvious threat to their lives, and

when Appellant had clearly gained the upper hand, he nonetheless began firing.

Consequently, there was no testimony in the record to indicate that Appellant

became enraged, resentful or terrified immediately prior to the shooting. Absent that

level of sudeden passion, the trial court correctly concluded that Appellant was not

entitled to his requested instruction. There is no merit to this Point of Error and it

should be overruled.

60
 P RAYER

WHEREFORE, for the reasons stated herein, the State of Texas prays that the

Court of Appeals overrule Appellant’s Points of Error and affirm the judgment of the

7th District Court, Smith County, Texas, in this case as modified.

Respectfully submitted,

D. MATT BINGHAM
Smith County Criminal District Attorney

/s/ Michael J. West
_________________________
Michael J. West
Asst. Criminal District Attorney
Bar I.D. No. 21203300
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719 (fax)
mwest@smith-county.com

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4 (i)(3), the undersigned

attorney certifies that the word count for this document is 14, 331 words as calculated

by Corel WordPerfect X6.

/s/ Michael J. West
_________________________
Michael J. West

61
 CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this _____
11th day of ________________,
September
2015, the following have been completed:

(1) The original legible copy of the State’s Response to Appellant’s Brief in the
above numbered cause has been sent via electronic filing to the Clerk of the
Court of Twelfth Court of Appeals.

(2) A legible copy of the State’s Response to Appellant’s Brief in the above
numbered cause has been been sent via electronic filing to:

Mr. G. J. Smith
Attorney at Law
2000 E. Lamar, Ste. 330
Arlington, Texas 76006

/s/ Michael J. West
_________________________
Michael J. West
Asst. Criminal District Attorney
Bar I.D. No. 21203300
100 N. Broadway, 4th Fl.
Tyler, Texas 75702
(903) 590-1720
(903) 590-1719 (fax)

62